SUPREME SPECULATION: WHAT ORAL ARGUMENTS HINT ABOUT HOW JUSTICES ARE LEANING IN CAMPOS-CHAVES V. GARLAND

By Hans Frank-Holzner, Volume 108 Staff Member

On January 8, 2024, the Supreme Court heard oral arguments in Campos-Chaves v. Garland,[1] a consolidation of three immigration cases concerning the statutory notice requirements the government must meet before it can order a noncitizen removed without a hearing.[2] Under the government’s reading, the Immigration and Nationality Act (INA)  provides two independent forms of notice, either of which, if provided to the noncitizen, satisfies the notice requirement.[3] Under the noncitizens’ reading, the INA requires the government to always serve one type of notice, which–if, and only if, compliant–may be supplemented by a second notice that changes or modifies it.[4] Based on clues from questions asked during oral arguments, and the Justices’ dispositions in two prior cases presenting a similar issue, Pereira v. Sessions[5] and Niz-Chavez v. Garland,[6] it seems likely that at least five Justices will adopt a view similar to that of the noncitizens. Part I of this Post introduces the background of the case, including the statute at issue, the basic facts, the conflicting interpretations, and the relevant Supreme Court precedent on the issue. Part II briefly analyzes how each of the Justices’ questions at oral argument and past disposition on similar issues indicates how they might be leaning in the present case.

I. Background

A. Statutory Context

Under the INA, whenever the government wishes to initiate removal proceedings against a noncitizen, the statute requires it to give the noncitizen a Notice to Appear (NTA).[7] The statute requires that the NTA contain certain information about the proceedings, including the “time and place at which [they] will be held.”[8] The NTA is also known as “paragraph (1) notice.” The INA also allows the government to change or postpone the time and place of the proceedings by giving the noncitizen Notice of Change (NOC) that specifies the new time and place of the proceedings and reiterates the consequences of failing to appear at the proceedings.[9] An NOC is also known as “paragraph (2) notice.”

If the government can show that it has provided “written notice required under paragraph (1) or (2)” to a noncitizen that that noncitizen is legally removable, and that that noncitizen failed to appear at their scheduled hearing, the INA provides that the immigration judge shall order the noncitizen removed in absentia.[10] An in absentia removal order means that a noncitizen is ordered removed from the United States without a hearing, regardless of the potential merits of their case.[11] However, the statute also provides that if a noncitizen who has been ordered removed in absentia can demonstrate that they did not receive “written notice in accordance with paragraph (1) or (2),” then the noncitizen may move to rescind the in absentia removal order and reopen their proceedings.[12]

B. Basic Facts

The three consolidated cases concern three different noncitizens who each received purported NTAs that did not contain the time and date of the proceedings as required under 8 U.S.C. § 1229(a)(1).[13] Instead of specifying the time and date on the NTA, the government listed “TBD.”[14] Later, the government sent each of the noncitizens a second notice entitled a “Notice of Hearing”, which for the first time established the time and place of the proceedings.[15] At some point during their proceedings, each of the three noncitizens failed to appear and were ordered removed in absentia.[16] Each noncitizen moved to rescind their in absentia removal orders and reopen their removal proceedings under the theory that, because the government did not include the time and date in the NTA as required by the statute, that they did not receive “written notice in accordance with paragraph (1) or (2) of Section 1229(a).”

C. Conflicting Interpretations

The government for its part concedes that it did not provide the noncitizens with statutorily complaint NTAs but argues that the “Notices of Hearing” it provided to each noncitizen constituted NOCs in accordance with paragraph (2). In other words, under the government’s reading, paragraph (1) and paragraph (2) constitute two independent forms of notice either of which, if provided to the noncitizen, satisfies the notice requirement.[17] Under the noncitizens’ reading the INA requires the government to always serve a compliant paragraph (1) NTA containing the time and place of the proceedings, which–only if compliant–may be amended by a paragraph (2) NOC changing the initially set time and place.[18] Put simply: no valid NTA, no valid NOC. Whose reading of the statute is correct is up to the Court.

D. Relevant Precedent

This is not the first time the Court has weighed in on the immigration notice requirements. In Pereira v Sessions the Court held that an NTA that does not contain all the information required under 8 U.S.C. § 1229(a)(1)(A)–(G) is not a valid NTA for purposes of triggering the so-called “Stop Time Rule.”[19] In Niz-Chavez v. Garland, the Court held that a subsequently issued NOC cannot cure a deficient NTA.[20] In other words, the government cannot put two documents together to satisfy the requirements of 8 U.S.C. § 1229(a)(1)(A)–(G). In addition to their questions in oral argument on January 8, the disposition of the current Justices who participated in Pereira and Niz-Chavez offers clues into how they may vote in Campos-Chaves v. Garland.

II. Evidence from Oral Argument

Based on their disposition in Pereira and Niz-Chavez (if applicable) and their questioning during oral argument, I believe it is likely that Justices Gorsuch, Sotomayor, Kagan, Jackson, and Thomas will adopt a reading similar to the noncitizens. On the same token, I believe that Justices Alito, Kavanaugh, and Chief Justice Roberts will likely adopt a reading similar to the government. I believe it is possible that Justice Barrett joins either side or writes separately charting her own interpretation.

A. Justice Gorsuch

Based on Justice Gorsuch’s disposition in Pereira and Niz-Chavez, his aggressive questioning of the government, and low-ball questioning of the noncitizens’ attorney, it is likely that Justice Gorsuch will adopt a reading similar to the noncitizens.  Justice Gorsuch wrote the majority opinion in Niz-Chavez, where he chastised the government for failing to follow the law.[21] During oral arguments he aggressively pressed the government’s attorney to indicate a statutory basis under which its reading would prevent the government from willfully refusing to provide any of the information required under paragraph (1) and still remove noncitizens in absentia.[22] He expressed great skepticism at the government’s contention that the Pereira Court’s reading of the word “change”[23] in paragraph (2), which presumed that the time and place had already been set in paragraph (1), was not only dicta, but also incorrect.[24] Justice Gorsuch’s questions to the noncitizens’ attorney provided easy opportunity for the advocate to bolster the noncitizens’ reading and point out the weaknesses in the government’s argument.[25] It therefore seems very likely that Justice Gorsuch will adopt a reading similar to the noncitizens.

B. Justice Sotomayor

Similarly, Justice Sotomayor seems likely to adopt a reading similar to the noncitizens’ because of her dispositions in Pereira and Niz-Chavez and her favorable questions to the noncitizens’ attorney compared to her skeptical questions to the government’s attorney. Justice Sotomayor wrote the majority opinion in Pereira where she explicitly said that “[b]y allowing for a ‘change or postponement’ of the proceedings to a new ‘time or place,’ paragraph (2) presumes that the Government has already served a ‘notice to appear under section 1229(a)’ that specified a time and place as required by §1229(a)(1)(G)(i). Otherwise, there would be no time or place to ‘change or postpon[e].’”[26] She expressed skepticism to the government’s arguments seeking to undercut this presumption,[27] and similar to Justice Gorsuch pressed the government to explain what incentive it would have to follow the requirements of paragraph (1) if the court were to rule it its favor.[28]

In her questioning of the noncitizens’ attorney, Justice Sotomayor indicated that she may even go so far as to view compliant NTAs as required to vest jurisdiction in the Immigration Court–a view that the noncitizens’ advocate was careful to push back on.[29] Finally, she responded directly to Justice Alito’s negative line of questioning quipping that “all dates are aspirational” in response to his suggestion that due to impracticability the government may have to put conjectural dates on the NTAs in order to comply with the noncitizens’ reading.[30] It therefore seems very likely that Justice Sotomayor will adopt a view similar to the noncitizens’.

C. Justice Kagan

Though Justice Kagan asked difficult, prying questions of both sides, based on her prior position in Pereira and Niz-Chavez it seems likely that she will side with the noncitizens in this case. In addition to voting with the majorities in both Pereira and Niz-Chavez, Justice Kagan expressed skepticism at the government’s arguments against the Court’s reading of “change” in that case.[31] She also took direct issue with the government’s premise that the statute envisions two distinct forms of notice.[32] Similar to Justice Gorsuch, she also pressed the government to show what provision in the statute would incentivize it to adhere to the requirements of paragraph (1) if the Court ruled in its favor.[33] Though she pressed the noncitizens’ attorney on her textual hook that the statute requires a valid NTA to precede a valid NOC, the balance of her questions was fundamentally more skeptical of the government’s position.[34] This, combined with her previous holding in Pereira and Niz-Chavez, make it seem fairly likely that Justice Kagan will side with the noncitizens’ in this case.

D. Justice Jackson

Justice Jackson did not participate in the Pereira and Niz-Chavez decisions as she was not yet on the Court; however, her incisive questions left no doubt that she views the noncitizens’ reading favorably and the government’s with skepticism. She questioned the government extensively on its attempt to distinguish the current cases from the majorities in Pereira and Niz-Chavez.[35] Her questions to the noncitizens’ attorney were almost entirely to tee up points allowing her to respond to negative points pressed upon by other Justices.[36] These factors make it seem more likely that Justice Jackson will side with a reader similar to the noncitizens’ in this case.

E. Justice Thomas

Justice Thomas only asked three questions during argument; however, because he sided with the majority Pereira and Niz-Chavez, it seems unlikely that he will change his position. Justice Thomas opened the oral arguments asking the government to explain why it was right in light of the fact that Pereira worked against its position.[37] His first question for the noncitizens’ attorney was a neutral request for her to highlight the textual basis for the proposition that paragraph (2) notice must be preceded by a valid paragraph (1) notice. Though his second question pushed back a bit on the noncitizens’ reading of the word “change,” it seems more likely than not that he will not change his previous position from Pereira and Niz-Chavez and will adopt a reading similar to the noncitizens’ in this case.

F. Justices Alito, Kavanaugh, and Chief Justice Roberts

Based on their questions and prior positions in Pereira and Niz-Chavez, Justices Alito, Kavanaugh, and Chief Justice Roberts seem likely to vote against the noncitizens’ reading in this case. Justice Alito dissented in both Pereira and Niz-Chavez and though Justice Kavanaugh and Chief Justice Roberts voted with the Majority in Pereira, they dissented alongside Justice Alito in Niz-Chavez. Additionally, their questions were universally skeptical of the noncitizens’ position, and the questions they asked of the government’s attorney were to provide him leeway to expound on his strongpoints.[38] It therefore seems more likely than not that Justices Alito, Kavanaugh, and Chief Justice Roberts will adhere to something similar to the government’s reading of the statute.

G. Justice Barrett

Justice Barrett questioned both sides extensively and rigorously. Though she voted with the majority in Niz-Chavez, it is unclear whether she will do so again in this case. Her questions to the government echoed Justices Gorsuch and Kagan’s skepticism for what incentive the government would have to follow the statue if the Court ruled in its favor.[39] However, her questions to the noncitizens’ attorney made it seem as though she may want  to carve a middle ground where the government is required to adhere to all the paragraph (1) requirements in order for notice to be valid, but if the noncitizen gets constructive notice though a subsequent document, that they must show up at the proceedings in order to contest the invalidity of the incomplete paragraph (1) notice.[40] I believe it is equally likely that Justice Barrett side with either the government, the noncitizens, or writes separately to chart her own interpretation.

III. Conclusion

Though any certainty as to how the Court will rule is impossible, the Justices’ dispositions in the prior cases of Pereira and Niz-Chavez and the way and what questions they asked of the parties during oral argument make it seem likely that at least five Justices will adopt the position of the noncitizens in this case. Justices Gorsuch, Sotomayor, Kagan, Jackson, and Thomas seem likely to adopt a reading similar to the noncitizens, while Justices Alito, Kavanaugh, and Chief Justice Roberts seem likely adopt a reading similar to the government. It is possible that Justice Barrett joins either side or writes separately charting her own interpretation.

 

[1] Campos-Chaves v. Garland, –– U.S. –– (2024) (No. 22-674).

[2] Oral Argument, Audio, Campos-Chaves v. Garland, –– U.S. –– (2024) (No. 22-674), https://www.supremecourt.gov/oral_arguments/audio/2023/22-674 [https://perma.cc/J2DA-TAN4]. This type of removal order is known as an in absentia removal order. Under 8 U.S.C. § 1229a(b)(5)(A) the government may order a noncitizen removed in absenita if the government shows three things: First, it has provided the noncitizen with written notice required under paragraph (1) or (2) of section 1229(a); second, the noncitizen did not attend a proceeding; and third, the noncitizen is removable.

[3] Brief for Respondent at 18, Campos-Chaves v. Garland, –– U.S. –– (2024) (No. 22-674) [Hereinafter “Respondent’s Brief”] (“Section 1229(a) creates two distinct forms of notice, and nothing in that provision, or elsewhere in the INA, suggests that the validity of an [notice of hearing] turns on the complete- ness of the NTA that preceded it.”).

[4] Brief for Petitioner at 15–16, Campos-Chaves v. Garland, –– U.S. –– (2024) (No. 22-674) [Hereinafter “Petitioner’s Brief”] (explaining that paragraph (2) notice is only valid if preceded by statutorily compliant paragraph (1) notice).

[5] Pereira v. Sessions, 138 S. Ct. 2105 (2018).

[6] Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).

[7] 8 U.S.C. § 1229(a)(1).

[8] Id. § 1229(a)(1)(G)(i). Other required information includes: the nature of the proceedings, the legal authority under which the proceedings are conducted, the charges against the noncitizen, that the noncitizen has the right to obtain counsel, that the noncitizen must provide and keep up to date their contact information, the consequences of failing to keep their contact information up to date, and the consequences of failing to appear at their scheduled hearing. Id. §1229(a)(1)(A)–(G).

[9] Id. § 1229(a)(2).

[10] Id. § 1229a(b)(5)(A).

[11] Kristin Macleod-Ball, Practice Advisory: In Absentia Removal Orders, National Immigration Litigation Alliance (July 14, 2023), https://immigrationlitigation.org/wp-content/uploads/2023/08/23.08.01-In-Absentia-PA-FINAL.pdf [https://perma.cc/7QJ2-UZHR].

[12] 8 U.S.C. § 1229a(b)(5)(C).

[13] Respondent’s Brief, supra note 3, at 5–6, 9, 13.

[14] Id.

[15] Id.

[16] Id. at 6, 10, 14.

[17] Id. at 18 (“Section 1229(a) creates two distinct forms of notice, and nothing in that provision, or elsewhere in the INA, suggests that the validity of an [notice of hearing] turns on the complete- ness of the NTA that preceded it.”).

[18] Brief for Petitioner, supra note 4, at 15–16 (explaining that paragraph (2) notice is only valid if preceded by statutorily compliant paragraph (1) notice).

[19] Pereira v. Sessions, 138 S. Ct. 2105, 2117 (2018). (“Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, the Attorney General of the United States has discretion to ‘cancel removal’ and adjust the status of certain nonpermanent residents. § 1229b(b). To be eligible for such relief, a nonpermanent resident must meet certain enumerated criteria, the relevant one here being that the noncitizen must have ‘been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [an] application’ for cancellation of removal. § 1229b(b)(1)(A). IIRIRA also established the stop-time rule at issue in this case. Under that rule, ‘any period of . . . continuous physical presence in the United States shall be deemed to end . . .when the alien is served a notice to appear under section 1229(a) of this title.’”).

[20] Niz-Chavez v. Garland, 141 S. Ct. 1474, 1479, 1486 (2021).

[21] Id.

[22] Oral Argument Transcript at 18–23, Campos-Chaves v. Garland, –– U.S. –– (2024) (No. 22-674) [Hereinafter, “Oral Argument Transcript”].

[23] Pereira, 138 S. Ct. at 2114 (“By allowing for a ‘change or postponement’ of the proceedings to a new ‘time or place,’ paragraph (2) presumes that the Government has already served a ‘notice to appear under section 1229(a)’ that specified a time and place as required by §1229(a)(1)(G)(i). Otherwise, there would be no time or place to ‘change or postpon[e].’”) (emphasis added).

[24] Oral Argument Transcript, supra note 22, at 37–42.

[25] Id. at 64 (bolstering own argument); id. at 99 (criticizing government’s argument).

[26] Pereira, 138 S. Ct. at 2114.

[27] Oral Argument Transcript, supra note 22, at 9.

[28] Id. at 23–28.

[29] Id. at 72–75.

[30] Id. at 96.

[31] Id. at 8.

[32] Id. at 28–30.

[33] Id. at 35–37.

[34] Id. at 87–90.

[35] Id. at 30–33, 51–57.

[36] Id. at 67, 80, 107.

[37] Id. at 6.

[38] Id. at 34–35, 42–45, 65–66, 83–86, 90; 95–96, 102.

[39] Id. at 12–16, 45–51.

[40] Id. at 68, 103–107.